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The law is settled on sexual assault. When will the legal system catch up?

Over the past year, the treatment of sexual assault complainants in the justice system has received a great deal of mainstream media attention. Much of the coverage has focused on how unfairly sexual assault complainants are treated. Examples include:

The cross-examination of complainants in the Jian Gomeshi case and the judge's findings that inconsistencies in the complainants' testimony made them not credible.

Comments made by Justice Robin Camp during a sexual assault trial in Alberta -- asking why the victim didn't keep her knees together -- that ultimately led to his resignation.

A comment by a Nova Scotia judge that a drunk person can consent -- in a trial where the complainant was found by police unconscious and undressed in the back of a cab.

And then, just this past week, the Supreme Court of Canada released a one-sentence decision that sums up the exasperation at the failings of the justice system when it comes to sexual assault.

In its R v. S.B. decision, the Supreme Court stated only that it agreed with all of the reasons provided by Justice Green of the Newfoundland and Labrador Court of Appeal in granting an appeal of the acquittal of a husband accused of sexually assaulting his wife. The Supreme Court did not feel the need to revisit the meaning and application of rape shield provisions, which have been in place since 1992 to protect sexual assault complainants from having their entire sexual history put before a court during a sexual assault trial. The Supreme Court's brief decision, to me, communicated clearly that the law is settled on this issue. Whether or not people in the justice system, and society at large, can actually follow and respect the protections the law seeks to provide to sexual assault complainants is another matter.

The amendment to the Criminal Code, passed in 1992, colloquially known as the rape shield law, prevents evidence from being introduced about a complainant's previous sexual activity, other than:

"[t]he sexual activity that forms the subject matter of the charge, unless the evidence is of specific instances of sexual activity, is relevant to the issue at trial, and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice."

In 1992, just like in 2017, sexual history had nothing to do with the likelihood that a complainant consented to sexual activity, or with the complainant's credibility.

The main issue that was the subject of the appeal in R. v. S.B. was straightforward. The trial judge in that case allowed defence counsel to introduce two pieces of problematic evidence: sexually explicit text messages between the complainant and her affair partner, and a transcript of a sex video she had made with the accused, being her husband. Neither of these pieces of "evidence" was relevant to the actual issues at trial.

The trial judge thought these items were relevant to the complainant's credibility. In particular, the trial judge allowed the text messages to be read aloud in court, despite the fact that the complainant had already admitted to the court that she had lied to the police about having an affair.

The Court of Appeal as a whole disagreed with the trial judge, finding that:

"[i]n the circumstances of this case...where the unfaithfulness and the untruthfulness in [the complainant's] statements to police were admitted, reading out the texts had the effect of conjuring up the first of the twin myths which section 276 is intended to prevent, that because of her prior sexual activity (here, her unfaithfulness) the complainant is more likely to have consented to sexual intercourse with the accused on the occasions as charged, being a woman (to use an old phrase) of easy virtue."

Despite this finding by the Court of Appeal, only Justice Green found that the evidence admitted -- of prior sexual history -- was so prejudicial that it warranted a new trial on the charges. According to Justice Green:

"By prohibiting admission of sexual history evidence to support the inferences leading to the twin myths, parliament has signalled that because of the significant dangers of influencing the jury to engage in lines of reasoning based on those myths, it is not sufficient to allow them to hear it even with an appropriate cautionary instruction."

The Supreme Court agreed. But the trial judge's decision did its damage. The complainant has now had private text messages and a transcript of a private sex video made public. She has also had to endure cross‑examinations on these issues.

Clearly, even after 25 years, the rape shield provisions have not succeeded in dismantling the hostile climate for sexual assault victims in the Canadian legal system. But I do take comfort in the Supreme Court's very direct statement granting the appeal. The highest court in Canada does not need to analyze, reiterate or rationalize the meaning of these protections. The law is settled on this point, even though practically speaking, the legal system may still be catching up.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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